KOVOLOFF v. UNITED STATES, 202 F. 475

KOHDSAAT, Circuit Judge (after stating the facts as above). The second count of the indictment, in substance, charges that defendant committed perjury in that:

(1) He falsely swore before the referee that his account books were burned in the fire of April 21, 1907; and (2) that he had no books of account on October 19, 1907, and November 7, 1907, and by way of negation of these two allegations sets out that he did have such books of account on October 16, 1907, and on November 7, 1907.

There is in the count no direct traverse of the alleged false statement that the books were destroyed by fire on April 21, 1907, unless the charge that defendant had the books on the two later dates may he deemed such a traverse, or that the allegation in the indictment that he— “well knew that the matters and things by Mm made oath to as hereinabove in this count set forth were not true, and that the said Dan Kovoloff, at the time and place above mentioned in this count of this indictment, did not believe the said matters and things by him testified to under oath, as aforesaid, to be true; that the testimony so given as aforesaid and so falsely sworn to and made oath by the said Dan Kovoloff, was willfully, fraudulently, and corruptly false and untrue as he, the -said Dan Kovoloff, at the túne of so making oath and swearing as aforesaid well knew” —constituted a sufficient negation of that allegation.

From the evidence, it appears that Kovoloff’s statement as to the destruction of the hooks by thel fire of April 21, 1907, was false, and that when last seen, a week and a half after the fire, the books were in his possession and control. It is laid down in Bartlett v. United States, 106 Fed. 884, 46 C. C. A. 19, that: “The facts material to be charged in an indictment must be stated clearly and explicitly and must not be left to intendment or reached by way of inference or argument.” In Rosenfeld v.

United States, 202 Fed. 469, handed down at this, April, session of the court, we have conceded the correctness of this rule of law with reference to an indictment charging perjury. Does the present indictment state the material facts explicitly? In U. S. v. Freed (C. C.) 179 Fed. 236, Judge Hand says: “As to tile failure to allege the actual facts and not merely that the defendants’ testimony in the perjury indictments was false, and that they believed it to be false, there is doubtless authority for the rule which would make the indictments invalid.

The practice in this district has been the other way, and on principle it is clear enough that the practice is right, for the requirement is of the allegation of evidence. If the practice is to be changed, the Circuit Court of Appeals [Second Circuit] must change it.”

Section 1025 of the Revised Statutes of the United States (U. S. Comp.

St. 1901, p. 720) providds that: “No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding therein, be affected by reason of any defect or imperfection in the matter of form only, which shall not tend to the prejudice of the defendant.” In substance, the present presentment charges that defendant committed perjury when he swore that his books were burned on April 21, 1907; that instead of having been burned on said 21st day of April, 1907, they were in existence and in his possession up to November 7, 1907; and that he knew he was making a false oath when he swore they were burned in April, 1907.

The assignments of perjury, under the principle enunciated in Commonwealth v. McLaughlin, 122 Mass. 449, are in substance an explicit averment that defendant substantially testified tfiat his books of account, which were sought for by his creditors, had been burned and were not in existence on April 21, 1907, whereas in truth and in fact they had not been consumed on that date, but had beein in defendant’s actual possession up to November 7, 1907.

This constituted, we think, a direct traverse of the defendant’s sworn statement'that the books were destroyed by fire on April 21, 1907, and we hold the indictment in that, behalf to be sufficient.

From the record it conclusively appears that the account books were not destroyeld in the fire of April, 1907; that they were in the possession and control of defendant as late as 1% weeks after the fire; that, during the last-named period, defendant’s bookkeeper worked upon them and took off and delivered to defendant statements therefrom; that the bookkeeper left them in defendant's possession.' The question therefore is: Was this evidence sufficient to justify the jury in finding defendant guilty as to said first assignment of perjury? We are of the opinion that it was.

It thus becomes unnecessary to pass upon the second assignment of perjury. Defendant further contends that the hearing at which said acts of perjury were in the indictment charged to have been committed was not in fact had before the referee in person, but in his absence from the room. From the evidence it appears that the hearing was had in the referee’s office; that he swore the witness and personally conducted some of the examination; that the examination- was in

part conducted by counsel, and all the evidence taken down in shorthand by a stenographer and written out in full; that the referee was at all times in the same room, or in one of his suite of offices adjacent to said room; that no objection was at the time made to the course pursued by the referee; that defendant was not in any way prejudiced thereby; that therei is nothing in the record to show that the referee was not within hearing of said examination at all times; and that the examination was in the nature of a civil proceeding.

Moreover, the only evidence in the record upon which to base the claim that the referee was not at all times present during said examination is that of the stenographer, who deduced from certain language or signs in heir notes that the referee was out of the room part of the time. She had no independent recollection that such was the case. The evidence sustains the allegations of the indictment that the examination was made by the! referee, and effectually controverts defendant’s contention that there is a variance between the indictment and the evidence, with reference to that matter. Schintz v.

People, 178 Ill. 320, 52 N. E. 903; Nichols & Shepherd Co. v. Metzger, 43 Mo. App. 607; Murphy v. People, 19 Ill. App. 131; Ouidas v. State, 78 Miss. 622, 29 South. 525; Ermlick v. State (Miss.) 28 South. 847; Turbeville v. State, 56 Miss. 793, 799; State v. Smith, 49 Conn. 377; Pritchett v. State, 92 Ga. 65, 18 S. E. 536; Rowe v. People, 26 Colo. 542, 59 Pac. 57. Affirmed